Surrogacy: What regulation means

From February 6 to 9, 2018, The Hague Conference convened its expert group on parentage and surrogacy. Based on the principle that « procreation conventions for others date back to the Bible’s time » (2012 report), the Conference aims at transnational recognition of this practice’s effects. It is exclusively lawyers involved in this practice whom the Conference has chosen as advisers, just as it consults exclusively NGOs that are in favour of it. However, the starting assumption is false: there is no surrogate mother in the Bible, all women – including slaves – are recognized as mothers of their children, from whom they are never separated.

In the face of these efforts to regulate surrogacy at the international level, it is important to understand why some wish to regulate it, and what regulation would mean.

It should be remembered that surrogacy is a social practice, not a medical technique, as sometimes claimed. It is made possible by in vitro fertilization and artificial insemination techniques. But asking a woman who has no desire for a child to go through a pregnancy (usually resulting from ovocytes that are not hers), and then to hand over the resulting child to others, is not a medical practice.
The main argument put forward by those in favour of regulating surrogacy is the reduction to something inevitable: « this practice is possible; it is carried out in many countries; people who wish to obtain a child by using it do so anyway. Then we might as well provide a framework to it. »

Wanting to regulate because the practice could be inevitable is to refuse to question the very nature of this practice, what it implies concerning, on the one hand, human relations, namely the fact that certain human beings can be transformed into means, in the service of others and, on the other hand, relations between women and men, since women would be likely to consider themselves as objects (oven, incubator, pod, etc.) for the satisfaction of others – the vast majority of whom happen to be men (footballer Cristiano Ronaldo, who has three children born to surrogate mothers, is an example ). This type of relationship is very similar to slavery, which is » the status or condition of a person over whom any or all the powers attaching to the right of ownership are exercised » (Slavery Convention).

In Surrogacy. A Human Rights Violation (2017), Australian researcher Renate Klein shows that the regulatory procedure consists of challenging the global approach to the problem’s nature, and imposing a partial approach, questioning one aspect or another of surrogacy, to know if and how it can be framed. In the words of American feminist Robin Morgan, Klein recalls that this is the very essence of patriarchy: the ability to institutionalize disconnection. Indeed, surrogacy is based on a fragmented, disconnected, crumbled representation of women and their bodies. This is what philosopher Sylviane Agacinski refers to as Crumbled bodies (Corps en miettes) (2013).

Regulating or legislating thus amounts to accepting the practice, and believing that one can limit its possible harmful consequences. Nevertheless, it is clear that the problem is the framework itself: the existence of a limit is unbearable for those wanting to obtain a child from a surrogate mother.

Furthermore, regulating surrogacy has nothing to do with women’s empowerment and autonomy. Where women can have access to properly paid and safe work, they do not become surrogate mothers. Indian women clearly say that this is a sacrifice they make because they have no other means of earning a decent living, especially for their children and that it would be a failure for them if their daughters also became surrogate mothers (Rozée & al., 2016; Saravanan, 2015).
The request for regulation comes mainly either from persons who have obtained children through a surrogate mother, acting according to a fait accompli (« accomplished fact« ) logic and a posteriori regulation (which raises the question of the value of the law for these persons) or from the various parties having financial and professional interests for the practice development: intermediation agencies, clinics, lawyers.
The various laws or regulations’ role in force today is to set a standard that has a dual purpose, namely to protect the various parties involved in the practice (surrogate mothers, sponsors, children), as is the case in Great Britain, Ukraine, India, etc., and to guarantee compliance with a contract, as in the American states that have legislated on this matter.
However, nowhere does the law guarantee that the demand will be met. Until now, the British law considers the woman who gives birth as the child’s mother, and it is after the birth that she must give her final agreement for the sponsors to be recognised as parents. Moreover, she is not supposed to be paid, but compensated for the (capped) related costs to the pregnancy. This law is not satisfactory. In Britain there are not enough surrogate mothers to meet British demands (as can be seen in To have and to hold: the rise of surrogacy in GB, Vogue, 27/09/2017). This initially led to the development of reproductive tourism, leading the British to seek surrogacy services elsewhere, particularly to access services not provided in the UK. Lord Weymouth explains that he and his wife used a surrogate mother in California so that the mother would not appear on the birth certificate. Secondly, the demand to legalize commercial surrogacy has been clearly formulated since 2016.
Where surrogacy legislation exists, and imposes on it a framework limiting delivery to what is presented as an altruistic (supposedly ethical) practice, this leads to its commercialization being required.
Regarding the contract, its operation is characterised by a certain obscurity on several points. One of the first questions arising when signing a contract is to know what are the reversibility conditions (for example, a purchase, a service or a marriage contract). When it comes to surrogacy, one realizes that it is almost impossible to apprehend the contract reversibility. While always cited as an example, American contracts do not protect surrogate mothers at all, as was shown in the case of this woman who, harassed by the sponsors, turned away from them, suffered racist insults from them, and decided not to separate from the child. She was nevertheless separated from it, because it came from the sponsor’ sperm (Who is baby H parent? The Des Moines Register, 29/08/2017).
The contract assumes equality between the parties. However, sociological surveys show that the parties are most often unequal. The profiles of American « surrogates » clearly attest to the unequal relationships (economic, social, cultural, symbolic) in which they find themselves with the sponsors (Jacobson, 2016).
The contract presupposes that one can go to court to enforce its terms in the event of non-compliance by one of the parties: this is the law’s role. However, to bring a case before the courts, to enforce the law, one must have the means to do so. Yet, the surrogate mother’s lawyers are paid by the sponsors, at the beginning of the relationship, for a semblance of correction. See on the subject the film Breeders. A Subclass of Women which gives a voice to deceived and exploited by contract American surrogate mothers.

The contract in this case opens the door to all kinds of abuses, insofar as illegal things can be asked to surrogate mothers, with the « parents of intent » convinced that they will accept them, so as not to lose the contract; for example, renouncing to the confidentiality between the surrogate mother and the doctor, or accepting that the sponsors are the only ones to decide on embryo reduction, abortion or even childbirth modalities.The contract turns children into property because, in California, for example, the surrogacy law is based on the intellectual property law to establish parentage: it is the person who had the idea of having the child who is the parent. Children are thus assimilated to goods as are ideas.
Even if one were to admit that a surrogacy regulation could improve its practice, it is clear that the contentious points would persist. Who’s the mother? On what criteria is she designated? How are sponsors and women wishing to become surrogate mothers linked (for-profit agencies, public body, with what funding)? Who does it, under what conditions, according to what criteria? Can we select (mothers, sponsors)? In the name of what? What about the kids? What should be planned for their access to their origins? How can we guarantee it? Muriel Fabre-Magnan clearly presents the issues of all these questions in Surrogate motherhood. Fiction and reality (La gestation pour autrui. Fictions et réalité) (2013).

Regardless of the modalities, regulating surrogacy would be tantamount to recognizing the right of all to use surrogate mothers, and to reclaim the children they would bring into the world based on a contract. Thus, enshrining the irreducible inequality between women and men, and between persons: born by contract or not.